Citation Nr: 0017198
Decision Date: 06/29/00 Archive Date: 07/05/00
DOCKET NO. 99-03 842 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss.
2. Entitlement to service connection for breathing problems,
claimed as due to exposure to mustard gas in service.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
S. J. Janec, Associate Counsel
INTRODUCTION
The veteran had active military service from September 1951
to August 1953.
This matter comes before the Board of Veterans' Appeals
(Board) from a January 1998 rating decision of the Boston,
Massachusetts, Regional Office (RO) of the Department of
Veterans Affairs (VA) which denied service connection for
bilateral hearing loss and breathing problems, claimed as due
to exposure to mustard gas in service.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained.
2. There is no competent medical evidence of record which
shows that the veteran has bilateral hearing loss that was
manifested in service or within the first post-service year,
and it is not shown to be causally related to his exposure to
noise in service.
3. The veteran's claim for service connection for bilateral
hearing loss is not plausible under the law.
4. There is no medical evidence of record which shows that
the veteran currently has a chronic disability manifested by
breathing problems.
5. The veteran's claim for service connection for breathing
problems, claimed as due to exposure to mustard gas in
service, is not plausible under the law.
CONCLUSIONS OF LAW
1. The veteran has not submitted a well-grounded claim for
service connection for bilateral hearing loss. 38 U.S.C.A.
§ 5107 (West 1991).
2. The veteran has not submitted a well-grounded claim for
service connection for breathing problems, claimed as due to
exposure to mustard gas in service. 38 U.S.C.A. § 5107 (West
1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
The veteran's DD Form 214 indicates that his most significant
duty assignment was with the 371st Armed Infantry Battalion.
He was awarded the Army of Occupation Medal (Germany). He
received no wounds as a result of action with the enemy.
Service medical records do not show any complaints of or
treatment for hearing or breathing problems. A routine chest
x-ray taken in October 1951 was reported to be negative.
Upon separation examination in August 1953, his lungs and
chest were reported to be clinically normal. His hearing was
reported to be 15/15 for a whispered voice.
In his initial claim for benefits filed at separation from
service, there was no mention of breathing problems or a lung
disability.
In a later claim for benefits received by the RO in June
1997, the veteran reported that he had had breathing problems
since 1960. He noted that he had been exposed to mustard gas
during basic training in Hawaii in 1951 on two occasions. A
canister was opened and he went through the area twice. He
also noted that he had been employed for 42 years as an
electrician.
Private medical records dated January 1984, November 1989,
and October 1991, indicate that the veteran underwent
bilateral hearing tests. The results were reported on a
graph which measured his hearing level in decibels at various
frequencies.
Private medical records dated in August 1992 indicate that
the veteran underwent inhalant skin testing. No clinical
results are reported.
In a January 1997 letter from Charlton Memorial Hospital, it
was reported that there were no records on file pertaining to
the veteran.
In a November 1997 reply, the National Personnel Records
Center (NPRC) reported that no medical records were on file
for the veteran. It was noted that records may have been
destroyed by fire.
In a January 1998 letter from the Historical Research and
Response Team, U.S. Army Chemical and Biological Defense
Command (CBDCOM), VA was informed that CBDCOM had no
information regarding the use of mustard gas in basic
training in Hawaii in 1951. The letter further stated that
the initial inquiry did not contain sufficient information,
and subsequent requests should include more detailed
statements from the veteran regarding the reported exposure.
A standard information form was included.
In his December 1998 substantive appeal, the veteran related
that he believed his breathing problem was directly related
to his exposure to mustard gas in service. He also stated
that he was exposed to machine gun fire and artillery tank
weapons explosions when he was assigned as a heavy weapons
squad leader.
II. Analysis
Under applicable criteria, service connection may be granted
for a disability resulting from disease or injury which was
incurred in, or aggravated by, active military service.
38 U.S.C.A. §§ 1110, 1131 (West 1991). To establish a
showing of chronic disease in service, there is required a
combination of manifestations sufficient to identify the
disease entity, and sufficient observation to establish
chronicity at the time. 38 C.F.R. § 3.303(b) (1999). If
chronicity in service is not established, a showing of
continuity of symptoms after discharge is required to support
the claim. Id. See also Rose v. West, 11 Vet. App. 169
(1998); Savage v. Gober, 10 Vet. App. 488, 495-98 (1997).
Service connection may also be granted for any disease
diagnosed after discharge, when all of the evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d) (1999).
The threshold question to be addressed, in any case, is
whether the veteran has presented well-grounded claims.
38 U.S.C.A. § 5107 (West 1991); Gilbert v. Derwinski, 1 Vet.
App. 49 (1990). If he has not, the claims must fail, and
there is no further duty to assist in any development.
38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet. App. 78
(1990). This requirement has been reaffirmed by the United
States Court of Appeals for the Federal Circuit in its
decision in Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir.
1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348
(1998). That decision upheld the earlier decision of the
United States Court of Appeals for Veterans Claims which made
clear that it would be error for the Board to proceed to the
merits of a claim which is not well grounded. Epps v. Brown,
9 Vet. App. 341 (1996). See Morton v. West, 12 Vet.
App. 477, 480 (1999) (noting that the Federal Circuit, in
Epps v. Gober, supra, "rejected the appellant's argument
that the Secretary's duty to assist is not conditional upon
the submission of a well-grounded claim"). See also
Schroeder v. West, 12 Vet. App. 184 (1999) (en banc order).
The Court of Appeals for Veterans Claims has also held that
in order to establish a claim for service connection is well
grounded, there must be competent evidence of: (1) a current
disability (a medical diagnosis); (2) the incurrence or
aggravation of a disease or injury in service (lay or medical
evidence); and (3) a nexus (that is, a connection or link)
between the in-service injury or aggravation and the current
disability. Competent medical evidence is required to
satisfy this third prong. See Elkins v. West, 12 Vet. App.
209, 213 (1999) (en banc), citing Caluza v. Brown, 7 Vet.
App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.
1996) (table), and Epps, supra. Although the claim need not
be conclusive, the statute [38 U.S.C.A. §5107] provides that
[the claim] must be accompanied by evidence in order to be
considered well grounded. Tirpak v. Derwinski, 2 Vet. App.
609, 611 (1992). In a claim of service connection, this
generally means that evidence must be presented which in some
fashion links the current disability to a period of military
service or to an already service-connected disability.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303,
3.310(a) (1999); Rabideau v. Derwinski, 2 Vet. App. 141, 143
(1992); Montgomery v. Brown, 4 Vet. App. 343 (1993).
Besides establishing a well grounded claim pursuant to Caluza
above, the chronicity provisions of 38 C.F.R. § 3.303(b) are
applicable where evidence, regardless of its date, shows that
a veteran had a chronic condition in service, or during an
applicable presumptive period, and still has such condition.
Such evidence must be medical unless it relates to a
condition as to which under case law of the Court, lay
observation is competent. If chronicity is not applicable, a
claim may still be well grounded on the basis of 38 C.F.R. §
3.303(b) if the condition is noted during service or during
an applicable presumptive period, and if competent evidence,
either medical or lay, depending on the circumstances,
relates the present condition to that symptomatology. Savage
v. Gober, 10 Vet. App. 488 (1997).
Evidentiary assertions by a claimant are accepted as true for
purposes of determining whether a claim is well-grounded, but
the exception to that rule is where the evidentiary assertion
is inherently incredible or when it is beyond the competence
of the person making it. King v. Brown, 5 Vet. App. 19
(1993). Lay persons (i.e., persons without medical training
or expertise) are not competent to offer medical opinions.
Therefore, lay assertions of medical diagnosis or causation
do not constitute competent evidence sufficient to render a
claim well grounded. See, e.g., Voerth v. West, 13 Vet. App.
117, 120 (1999) ("Unsupported by medical evidence, a
claimant's personal belief, no matter how sincere, cannot
form the basis of a well-grounded claim."); Heuer v. Brown,
7 Vet. App. 379 (1995); Magana v. Brown, 7 Vet. App. 224
(1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993);
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).
A. Bilateral Hearing Loss
Where a veteran served 90 days or more during a period of war
and high frequency hearing loss becomes manifest to a degree
of 10 percent within one year from date of termination of
such service, such disease shall be presumed to have been
incurred in service, even though there is no evidence of such
disease during the period of service. This presumption is
rebuttable by affirmative evidence to the contrary.
38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West l991 & Supp.
1999); 38 C.F.R. §§ 3.307, 3.309 (1999).
For the purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
2000, 3000, 4000 Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (1999).
"[W]hen audiometric test results at a veteran's separation
from service do not meet the regulatory requirements for
establishing a 'disability' at that time, he or she may
nevertheless establish service connection for a current
hearing disability by submitting evidence that the current
disability is causally related to service." Hensley v.
Brown, 5 Vet. App. 155, 160 (1993).
Service medical records do not show any evidence of bilateral
hearing loss in service or at discharge, and there is also no
medical evidence which shows that the veteran was diagnosed
with hearing loss within one year of his discharge. Even
accepting that he currently has hearing loss disability by VA
standards, and that he was exposed to acoustic trauma in
service, he has not presented any medical evidence relating
such hearing loss to noise exposure in service. Without
medical evidence of a relationship between any current
hearing loss disability and service, the claim is not well
grounded and must be denied. See 38 C.F.R. § 3.303; Elkins,
Caluza, supra.
B. Breathing Problems Due to Mustard Gas Exposure
Claims based upon chronic residual effects of exposure to
mustard gas and Lewisite are governed by 38 C.F.R. § 3.316,
which provides as follows:
(a) Except as provided in paragraph (b) of this
section, exposure to the specified vesicant agents
during active military service under the
circumstances described below together with the
subsequent development of any of the indicated
conditions is sufficient to establish service
connection for that condition:
(1) Full-body exposure to nitrogen or sulfur
mustard during active military service together
with the subsequent development of chronic
conjunctivitis, keratitis, corneal opacities, scar
formation, or the following cancers:
Nasopharyngeal; laryngeal; lung (except
mesothelioma); or squamous cell carcinoma of the
skin.
(2) Full-body exposure to nitrogen or sulfur
mustard or Lewisite during active military service
together with the subsequent development of a
chronic form of laryngitis, bronchitis, emphysema,
asthma or chronic obstructive pulmonary disease.
(3) Full-body exposure to nitrogen mustard during
active military service together with the
subsequent development of acute nonlymphocytic
leukemia.
(b) Service connection will not be established
under this section if the claimed condition is due
to the veteran's own willful misconduct or there is
affirmative evidence that establishes a non-
service-related supervening condition or event as
the cause of the claimed condition.
38 C.F.R. § 3.316 (1999).
In the case of Pearlman v. West, 11 Vet. App. 443 (1998), the
Court addressed the application of 38 C.F.R. § 3.316 in
determining the well groundedness of claims. The Court
indicated that under 38 C.F.R. § 3.316, the initial burden
for a well-grounded claim was relaxed for veterans who
subsequently developed conditions specified by the
regulation, to the extent that the regulation did not require
evidence of a medical nexus for those conditions, but rather
a nexus was presumed if the other conditions required by the
regulation were met. Pearlman, at 446. The Court specified
that "the veteran is relieved of his burden of providing
medical evidence of a nexus between the current disability
and the in-service exposure. Rather, service connection is
granted if the appellant has experienced: (1) full body
exposure, (2) to the specified vesicant agent, (3) during
active military service, and (4) has subsequently developed
the specified conditions" subject to the regulatory
exceptions in paragraph (b). Id.
The Board notes that in the Pearlman case, the veteran had
stated he had participated in gas chamber testing involving
mustard gas exposure, and that he had subsequently developed
disabilities which were among the conditions specified within
38 C.F.R. § 3.316. Although all efforts by VA to
substantiate his claimed exposure had been unsuccessful, the
Court held "that for the purpose of submitting a well-
grounded claim relating to exposure to toxic gases under this
regulation, the Board must assume that the lay testimony of
exposure is true." However, the Court further noted that
"whether or not the veteran meets the requirements of this
regulation, including whether or not the veteran was actually
exposed to the specified vesicant agents, is a question of
fact for the Board to determine after full development of the
facts." Pearlman, at 447.
As the United States Court of Appeals for Veteran's Claims
noted, "in the absence of proof of a present disability,
there can be no valid claim." Brammer v. Derwinski, 3 Vet.
App. 223, 225 (1992). The veteran has not presented any
medical evidence showing the presence of a chronic disability
manifested by breathing problems. As such, the Board
concludes that the veteran has not met the initial burden of
presenting evidence of a well-grounded claim of service
connection for that disability, as imposed by 38 U.S.C.A.
§ 5107(a). Accordingly, the claim must be denied.
C. Conclusion
We have carefully considered the contentions of the veteran
and, to the extent that he is offering his own medical
opinion, we note that the record does not indicate that he
has any professional medical expertise. See King, supra.
Therefore, his assertions of medical causation, sincere
though they may be, are not probative, because lay persons
are not competent to offer medical opinions or diagnoses.
See Bostain v. West, 11 Vet. App. 124, 127 (1998) ("lay
testimony . . . is not competent to establish, and therefore
not probative of, a medical nexus:); Routen v. Brown, 10 Vet.
App. 183, 186 (1997) ("a layperson is generally not capable
of opining on matters requiring medical knowledge"), aff'd
sub nom. Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998),
cert. denied, 119 S. Ct. 404 (1998). See also Espiritu,
Voerth, Grottveit, supra.
ORDER
Entitlement to service connection for bilateral hearing loss
is denied.
Entitlement to service connection for breathing problems,
claimed as due to exposure to mustard gas in service is
denied.
Iris S. Sherman
Member, Board of Veterans' Appeals